DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.545/2007
Sh. Deepak Aggarwal
S/o Late Smt. Kamlesh Aggarwal
R/o H.No.1334/9, Babra Mohalla,
Rohtak, Haryana-124001 ….Complainant
Versus
1. Senior Manager
SBI, Life Insurance Co. Ltd.
3rd Floor, Bank of Baroda Building,
Sansad Marg, New Delhi
2. UTI Bank,
Plot No.6, Block-Pitampura
Delhi-110088 …...Opposite Parties
Date of Institution : 30.04.2007 Date of Order : 10.04.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Sh. N.K. Goel, President
Very interesting facts of this case are that according to the Complainant his mother took a life insurance policy on 18.09.03 from OP No.1 and confirmation of the policy was received showing the policy premium and the policy certificate. Second premium became due to be payable on 18.09.04 and was duly paid on 19.09.04 by a cheque and the confirmation was received on 10.02.15. (copy Annexure C-3). However, the complainant’s mother died on 09.11.06 and after her death the complainant being her nominee presented the claim before the OP No.1 for maturity of the life insurance policy but he was told that the claim is not maintainable on the ground that the cheque by which the premium amount was payable on 18.09.04 had been dishonoured and that this fact had been duly intimated to the complainant vide letter dated 07.10.05. However, according to the Complainant he did not receive any information/alleged letter regarding dishonourment of the cheque dated 19.04.05 (sick) and he asked the OP No.1 to supply the postal/courier receipt by which the OP No.1 had been claiming about the information of the dishonourment of the cheque to the complainant. The complainant wrote letters dated 14.07.06, 18.07.06, 21.07.06, 21.08.06, 19.09.06, 10.11.06, 18.12.06 & 16.01.07 to supply the proof of service of alleged letter dated 07.10.05 and ultimately vide reply dated 21.02.07 OP No.1 in the reply to the letters sent a courier receipt (copy Annexure C-16) showing the delivery of the said letter on 25.10.06 (sick) clearly showing negligent, careless and malafide demeanor of OP No.1 just to avoid the payment of the life insurance policy maturity amount to the complainant, the nominee of the deceased. Para 12 of the complaint is material. The same reads as under:
“12. That the cheque dated 19-9-2004 which was duly drawn on the Opposite party no.2 by the Complainant was dishonored and this fact was not disclosed by the opposite party no.2 to the complainant neither in the bank statement nor vide any intimation qua any letter etc. in connivance with the Opposite party No.1 and has caused deficiency of service on his part out of its malafide intention.”
Hence, the complainant has filed the present complaint for issuing directions to the OPs to pay to him the maturity amount of the policy bearing No. 09001042505 vide customer No.171410, to pay compensation of Rs.90,000/- towards mental harassment and humiliation and cost of litigation to him.
In the preliminary objections of the reply OP No.1 has inter-alia stated as under:-
“2.1 It is submitted that under Section 64VB of the Insurance Act, no insurer shall assume any risk in India in respect of any insurance business unless and until the premium payable is received by him in advance or is guaranteed to be paid to the insurer in the manner prescribed by the rules framed under the Insurance Act. It is therefore, submitted that the advance payment of the premium under a policy is not only a contractual obligation but also a legal mandate for the continued assumption or risk under a policy of insurance.
3.2 The preamble to the Policy unambiguously states, among others, that the ‘Company’s liability to pay the benefits under the Policy is subject to due receipt of subsequent installments of premium as set out in the Schedule. So clause 2 of the Policy states as under:-
“A grace period of 30 days will be allowed for payment of quarterly/half yearly/year premiums. If the premium is not paid before the expiry of the days of grace, the policy will lapse. If death occurs either during the grace period or during the premium payment period, the Sum Assured will be paid after deduction of the premiums then due and all premiums falling due during the policy year, if any.”
It is submitted that on 06.02.06 the OP received a letter dated 31.01.06 allegedly by life assured, intimating change of residential address from that given in the policy documents to the address given in the said letter, which is that of the complainant herein; that, however, the life assured had already expired on 09.11.05, nearly three months prior to her letter asking for change of address; that the intimation about her death was given to the OP No.1 on 06.02.06 i.e. 9 days after the letter dated 31.01.06 asking for change of her address. It is stated that the life assured had paid only the first premium and the premium due on September, 18, 2004 and the policy which continued the coverage of risk on her life under the policy upto September 17, 2005 and the policy lapsed without acquiring any value w.e.f. 18.09.05. Hence, the policy was in lapsed condition on the date of her death i.e. 09.11.05. The relevant portion of the OP No.1’s reply is reproduced as hereunder:
“3.7 It appears that an attempt had been made to pay the premium through cheque Numbered 137126 dated September 19, 2005 allegedly drawn by Life Assured, Smt. Kamlesh Aggarwal on UTI Bank Ltd. A copy of the said cheque has been annexed to the complaint as Annexure-9 (page 19) of the Complainant. In order, however, to enable this Hon’ble Forum as to who had signed the said cheque, a clearer copy of the said cheque is annexed hereto and marked Annexure:D.
3.8 However, the aforesaid cheque dated September 19, 2005 was dishonored and returned by UTI Bank Ltd. on September 28, 2005, for the reason the “ Drawer’s Signature Differs”. A copy of the bank’s dishonor intimation in the form of “Cheque Return Memo” is annexed hereto and marked Annexure:E.
3.9 On receipt of the aforesaid “Cheque Return Memo” a letter was sent by the Company to Smt. Kamlesh Aggarwal, on October 7, 2005, intimating her of the dishonor of the cheque dated September 19, 2005 and asking her to pay the premium with interest and Bank and postage charges, totaling in all to Rs.3004/- (Rupees Three Thousand Four only). A copy of the said letter dated October 7, 2005 is annexed hereto and marked Annexure:F.
3.10 The aforesaid letter dated October 7, 2005 was delivered at the address recorded in the Policy and was received by one Mr. Lalit at 11.59 hrs. on October 27, 2005. Annexed hereto and marked as Annexure G is a copy of the letter dated February 5, 2007 of the courier, Messers Blue Dart Express Ltd. to that effect.
3.11 Life Assured, Late Smt. Kamlesh Agarwal, however, died on November 9, 2005 without making the payment of premium as advised of her vide Company’s letter dated October 7, 2005 (at Annexure: F)
3.12. Under the circumstances, it is submitted that the present complaint is frivolous, vexatious and an abuse of the process of law and is liable to be dismissed with costs to the Company in terms of Section 26 of the Consumer Protection Act, 1936” (sick).
It is prayed that the complaint be dismissed.
In its written statement OP No.2 has inter-alia stated as under:-
“12. The cheques received in clearing are dealt with at the Service Branch of the respondent Bank and as no returning charges were levied in respect of impugned cheque for the reasons “Drawer’s signature differ,” the said cheque was never received by the respondent bank’s branch and hence was not reflected in the statement of account of the Complainant.”
Hence, it is prayed that the complaint against OP No.2 be dismissed.
In the replication to the written statement of OP No.1 the complainant has stated that “death certificate was deposited with the Insurance Company in the beginning of December, 2007 and OP No.1 assured to settle the claim as earlier as possible.” However, it is denied that on 06.02.06 OP received a letter dated 31.01.06 allegedly by the Life Assured, intimating change of her residential address from that given in the policy document to the address given in the said letter, which is that of the complainant herein. According to the Complainant, the said letter is fabricated. It is denied that the intimation of her death was given to OP No.1 on 06.02.06 i.e. after 9 days of letter dated 31.01.06. It is submitted that the premium due on 18.09.05 was duly paid by the cheque bearing No.137126 which was alleged to be dishonoured by OP No.2 without any intimation to the complainant. It is submitted that the said cheque was issued by the complainant to pay the premium on behalf of her mother to the said policy became due to be paid on 18.09.05 and that the said cheque as per record was dishonoured on 28.09.05 and his mother had expired on 09.11.05 (emphasis given). It is denied that the cheque returning memo was sent by OP No.1 to Smt. Kamlesh Aggarwal (Life Assured) on 07.10.05 intimating about the dishonourment of the cheque.
In the replication to the written statement of OP No.2 the complainant has stated as hereunder:
“.. It is submitted that the said cheque was not issued by the mother of the complainant, but the complainant himself. It is denied that the respondent no.2 branch of the bank had never received the impugned cheque nor had handled returning of this cheque. It is submitted in this regard that the opposite party no.2 in connivance of the opposite party no.1 did not inform about the dishonour of the said cheque in the statements.”
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. I.V. Srinivas, Authorized Representative of OP No.1 and affidavit of Sh. Ajay Kaistha, Branch Head of OP No.2 have been filed in evidence on behalf of the OPs.
Written arguments have been filed on behalf of the parties.
Parties have not advanced oral arguments despite opportunity given to them in this behalf.
We have gone through the file very carefully and have also gone through the record.
We do not want to burden our order with a lengthy discussion. Form the pleadings of the parties and evidence adduced on the record it becomes crystal clear that the only bone of contention between the complainant and the OPs is whether late Sh. Kamlesh Aggarwal (Life Assured) or anyone or her behalf had issued a valid and legal cheque towards the premium payable on 18.09.05 to OP No.1 and, if so, whether dishonourment of the cheque by OP No.2 on the ground that “Drawer’s Signature Differ” was not justified and hence OPs are guilty of deficiency in service?
It is an undisputed fact that as per section 64VB of the Insurance Act regular payment of installments is a mandatory condition to continue the policy. If there is a default in payment of any installment the OP Insurance Company is entitled to take action as per the provisions of the Act and the terms and conditions governing the insurance policy in question.
In the present case, it is an admitted fact of the parties that late Smt. Kamlesh Aggarwal had deposited only one installment towards the premium of the policy in question which was the first installment while taking the policy in question from the OP Insurance Company.
Thereafter, she died on 09.11.05 (as stated in para No. 3 of the complaint). However, according to the Complainant late Smt. Kamlesh Aggarwal had deposited the second installment on 18.09.2005. According to the Complainant the amount of the second installment payable by her on 18.09.05 had been sent through a cheque but the same was dishonoured but intimation of the same was not received by the complainant. Now the case of the complainant is that vide reply dated 21.02.07 the OP No.1 had sent a copy of the courier receipt (Annexure C-16) showing the delivery of the letter dated 25.10.06. Annexure C-16 is a copy of the letter dated 19.12.06 sent by Blue Dart Express Ltd. in which it is shown that Airway bill No. 11030376416 dated 25.10.06 sent to Smt. Kamlesh Aggarwal had been delivered on 27.10.06 at 11.59 hrs. and the same was received by one Lalit. According to the Complainant, no person in the name of Lalit was residing at the given address. However, the correct address is not in dispute. Therefore, presumption is that the said letter/intimation had infact been delivered to the addressee on 27.10.06. Therefore, the contents of the said intimation letter must come to the notice of the Complainant who is the son of the life assured.
The said cheque had been returned by OP No.2 with the remarks “drawer’s signature differs”. In the replication to the written statement of OP No.2 and as reproduced hereinabove, the complainant has stated that the said cheque was not issued by his mother but by himself. Therefore, it is the complainant who had fabricated the signature of her mother on the cheque and sent it to the OP No.1 towards the premium amount and then the OP No.1 sent it to OP No.2 who returned the cheque unpaid with the remark “drawer’s signature differs”. The copy of cheque returning memo has been placed on the file which we mark as Y for the purposes of identification. The cheque No.137126 for an amount of Rs. 2797/- had been returned by the OP No.2 bank with the remarks “Drawer’s Signature Differs” on 28.09.05. The copy of the cheque has been placed on the record which we mark as Mark Z for the purposes of identification. The same is shown to have been signed by Smt. Kamlesh Aggarwal in English. Admittedly, the cheque was signed by the complainant himself. Therefore, the cheque was bound to be returned with the above stated remark by OP No.2 bank. Complainant had issued a forged and fabricated cheque to OP No.1. Still he claims innocence that he did not become aware about the dishonourment of the cheque. He must be having adequate knowledge that by sending a cheque bearing the forged and fabricated signature of his mother, he was going to gain nothing and the cheque was bound to be bounced. Therefore, the contention raised on behalf of the Complainant that his mother had paid the installment till her death with OP No.1 and thus submission of the complainant that he was never sent intimation with regard to dishonourment of the cheque is not correct. Therefore, the complaint is without any cause of action and is false and frivolous. We hold accordingly.
In view of the above discussion, we do not find any merit in the complaint and dismiss it with costs of Rs.8,000/- to be paid by the Complainant to OP No.1 & 2 in the ratio of 50:50.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 10.04.17.
